184 Mass. 472 | Mass. | 1904
The goods named in the declaration having been delivered to and accepted by the defendant for transportation, it could not as a common carrier be relieved from the liability incurred by its undertaking to safely carry and deliver them unless the oiled clothing that constituted the consignment is within the exceptions provided for in the contract of affreightment.
It is conceded that no loss would have occurred from any danger of the seas, if the cases of oiled clothing had been stowed below deck; and the defendant now seeks to be relieved from the payment of damages caused to the plaintiff by their loss, on the ground that, being within the excepted articles classed as “ inflammable goods,” it had the right to transport them as it might choose on deck or elsewhere; even if by reason of their being stowed on deck they became loose while in transit during a severe storm, and were thrown overboard, not only to save other goods from damage, but to prevent their interfering with the necessary and proper navigation of the ship.
The burden of making out this defence is on the defendant. 1 For this purpose it might show by competent evidence the composition and classification of the goods that were shipped and in so doing it would prove not only that they were within the class of merchandise that in the contract were at the shipper’s or owner’s risk, but that carrying them on deck would not be negligence on the part of the carrier.
After the captain of the ship had stated in his deposition to the admission of which in evidence no objection was made by the plaintiff, that the cases of oiled clothing were stowed on deck because of their inflammable nature, a foundation had been laid for the introduction of evidence to show a general usage; that because of its character it was customary among steamship companies to stow oiled clothing upon deck, “ and that it was to be
The existence of such a custom or usage and the extent to which it prevailed could be shown by witnesses who from long experience and observation knew what they and others did with such goods that were to be stowed on board, and then carried by vessels from port to port. All the deponents described what they did, and had seen done in like conditions. They testified to a fact. Haskins v. Warren, 115 Mass. 514, 535. Hutchins v. Webster, 165 Mass. 439, 441.
Whether the personal knowledge and experience of the several deponents was sufficient to qualify them to give such evidence was to be passed upon and determined by the judge presiding at the trial, and no good reason appears why his discretion was not exercised properly. An experience in loading and stowing cargoes of vessels extending in the case of one witness over a period of forty years and in that of another for at least twelve years was sufficient.
The form of some of the questions, to which objection was made, as to what were the reasons for such a usage did not call for the opinion of the witnesses as to whether or not it existed, but for a statement by them why oiled clothing was stowed in this way; and because of its uniformity and long continuance such a method of stowage was evidence that it had ripened into a custom.
Their testimony with that of other witnesses showed a general, uniform course of dealing as applied to the particular contract in issue, so far as it related to the shipping and transportation of goods properly classified as oiled clothing.
Where a custom is general as applied to a particular transaction the presumption is that both parties to the contract knew of it; and that it became incorporated in their contract and is binding on them.
And in an action on a contract in which one party introduces evidence of such general custom, and claims that it enters into and forms a part of the agreement, he is not obliged to prove actual knowledge of it by the other party.
There was ample evidence in this case not contradicted by the plaintiff, not only of such a usage and custom, but that the
For these reasons it became unnecessary for the defendant in order to bind the plaintiff to prove that it had actual knowledge of the custom relied on. Stevens v. Reeves, 9 Pick. 197, 201. Packard v. Earle, 113 Mass. 280, 283.
But such a presumption is one of fact for the jury, and not of law for the court. Winsor v. Dillaway, 4 Met. 221, 223. Mooney v. Howard Ins. Co. 138 Mass. 375.
The case should have been submitted to the jury to pass upon and determine this question, with instructions that the defendant must prove the alleged usage ; and that if upon all the evidence they were satisfied that such a usage or custom existed, then from its long continuance and the extent to which it had prevailed, they would be warranted in finding that it was known to the plaintiff, and formed a part of the agreement, and the defendant having brought itself within the exceptions of the bill of lading, the plaintiff could not recover.
Pxcejotions sustained.